22 Political Dialogue and Cooperation
Agreement between the EU and Central America
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(35183)
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(b)
(35184)
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(c)
(35185)
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(d)
(35186)
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(e)
(35187)
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Draft Council Decision on the conclusion of the Political Dialogue and Cooperation Agreement between the European Community and its Member States, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama with the exception of Article 49(3) thereof
Draft Council Decision on the signing of a Protocol to the Political Dialogue and Cooperation Agreement between the European Community and its Member States, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama as regards that Agreement with the exception of Article 49(3) thereof
Draft Council Decision on the signing of a Protocol to the Political Dialogue and Cooperation Agreement between the European Community and its Member States, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama as regards Article 49(3) of that Agreement
Draft Council Decision on the signing of a Protocol to the Political Dialogue and Cooperation Agreement between the European Community and its Member States, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama
Draft Council Decision on the conclusion of the Political Dialogue and Cooperation Agreement between the European Community and its Member States, and the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, of the other part, as regards Article 49(3) thereof
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| Legal base | (a) Articles 209(2) and 218(6)(a) TFEU; QMV; consent
(b) Articles 209(2) and 218(5) TFEU; QMV
(c) Articles 79 and 218(6)(a); QMV
(d) Articles 79 and 218(5) TFEU; QMV
(e) —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration
| EM of 15 July 2013 |
| Previous Committee Report
| None; but see (34168) 13155/12 and (34169)13156/1/12 REV.1: HC 86-xxxv (2012-13), chapter 19 (13 March 2013)
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| Discussion in Council
| To be determined |
| Committee's assessment
| Legally and politically important
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| Committee's decision
| Cleared |
Background
22.1 The 2003 Political Dialogue and Cooperation
Agreement (PDCA) builds on previous cooperation set out by the
1993 Framework Cooperation Agreement between the European Union
and Central America. It focuses on political dialogue and cooperation.
It is described in detail in our earlier Report.[72]
22.2 While it does not contain a trade component,
it does commit the Parties to work towards an Association Agreement,
which was signed in June 2012 following five years of negotiations.
Once the Association Agreement comes into force, the PDCA will
only apply to the extent that its provisions are compatible with
the Association Agreement. The Association Agreement will only
come into force in its entirety once all EU Member States have
ratified it, given its mixed nature. This means that, in the interim,
the PDCA will bring in deeper cooperation on those issues that
it covers. Parliament will be asked to ratify the Association
Agreement later this year, now that the European Parliament has
given its consent.
JHA ISSUES
22.3 Article 49(3) commits the parties to the Agreement
to conclude a future readmission agreement on request, providing
obligations on readmission as between the Member States of the
European Union and the countries of Central America.
22.4 Articles 47-50 also include cooperation on a
number of other JHA matters, but these are political declarations.
Previous consideration
22.5 The Minister for Europe (Mr David Lidington)
deposited an Explanatory Memorandum on 3 September 2012 and a
further Explanatory Memorandum on 18 February 2013. Overall,
he described the areas for cooperation as non-controversial and
consistent with UK aims for engagement in the region.
22.6 However, as is often the case in such agreements,
the drafting was unclear as to whether it was the Member States
or the European Union that had entered into these JHA obligations.
The earlier Explanatory Memorandum set out the Government's position
that the Title V opt-in applied in respect of the readmission
provisions. However, following further discussion in Brussels,
it was now of the view that the Member States entered into JHA
obligations in their own right. In particular, the first of the
EU's two unilateral declarations, in the Annex at the end of the
Agreement, supported such a conclusion. It confirmed that Article
49 was without prejudice to the internal division of powers between
the European Community (as was) and its Member States for the
conclusion of readmission agreements. In an area of shared competence,
exercise of that competence by the EU would, in principle, preclude
the Member States subsequently exercising that competence. Therefore
if the EU entered into obligations in the agreement with respect
to readmission, this would preclude Member States from also doing
so, contrary to the first unilateral declaration.
22.7 In the absence of the EU undertaking JHA obligations
on conclusion, the UK's Title V opt-in would not apply and no
Title V legal base needed to be cited. This approach would thus
also be consistent with the Council Decision on signature, adopted
in 2003 under a single development legal base. The Government
was content to approve the Council Decision as proposed on the
basis that the EU was only entering into obligations in the Agreement
in the field of development.
22.8 However, the Government recognised the need
to ensure that the UK's established position on JHA matters was
safeguarded, as well as the UK position on separate legal bases
being required in agreements of this type for each specific obligation
and substantial commitment entered into by the EU. It would therefore
lay a minute statement on conclusion of the Agreement clarifying
that the JHA and transport obligations in the Agreement were being
entered into by the Member States, and would encourage the Council
to do likewise. The UK's statement would also confirm for the
avoidance of doubt that, had the EU entered into JHA obligations,
the opt-in would have been available and the UK would have in
any event elected to enter into those obligations in its own right.
This would be consistent with the second EU unilateral declaration
annexed to the Agreement, which made it clear that in respect
of the UK at least, it entered into JHA obligations in its own
right.
22.9 Articles 47-50, being political declarations
rather than provisions that created legal effects within the UK,
did not trigger the application of the opt-in protocol.
Our assessment
22.10 We thanked the Minister for the important clarification
of whether the commitment to enter into readmission agreements
(if requested) was at Member State or EU level, and so whether
a Title V legal base was necessary.
22.11 We had no questions to ask and cleared both
documents from scrutiny.[73]
The further Council Decisions
22.12 The first document (document (a)) seeks to
conclude the PDCA between the European Union and its Member States
and the Republics of Costa Rica, El Salvador, Guatemala, Honduras,
Nicaragua and Panama ("Central America"), with the exception
of Article 49(3) of the Agreement.
22.13 The second document (document (b)) seeks agreement
for signature on behalf of the EU of a Protocol allowing the new
Member States of the EU since 2004 to accede to the Agreement
with the exception of Article 49(3) of the Agreement.
22.14 The third document (document (c)) seeks to
conclude the Agreement between the European Union and its Members
States and the Republics of Central America, as regards Article
49(3) of the Agreement.
22.15 The fourth document (document (d)) seeks agreement
for signature on behalf of the EU of a Protocol allowing the new
EU Member States since 2004 to accede to the Agreement as regards
Article 49(3) of the Agreement.
22.16 The fifth document (document (e)) seeks agreement
for Member States' signature of the Protocol.
22.17 The Minister for Europe (Mr David Lidington)
says that his Explanatory Memorandum of 15 July 2013 provides
an update on progress since his previous Explanatory Memoranda,
and that:
"It is important to
note that the proposed documents were derived from an earlier
document COM (2012)454, first proposed by the Commission on 13
August. They are not new proposals by the Commission, but are
the result of amendments by the EU Council Working Group for Latin
America (COLAT) splitting the Decisions on Signature of the Protocol
and Conclusion of the PDCA to separate out Article 49(3) of the
Agreement. As set out in Paragraph 6,[74]
this approach protects the United Kingdom's position on Justice
and Home Affairs as it allows the UK to conclude the Agreement
and sign the Protocol, with the exception of Article 49(3).
22.18 With regard to Justice and Home Affairs
considerations, the Minister says:
1. "Article 49(3) of the Agreement stipulates
obligations for the Contracting Parties on readmission of illegal
migrants. As a consequence, that provision falls within the scope
of Title V of Part Three of the Treaty on the Functioning of the
EU in respect of the Area of Freedom, Security and Justice.
"In accordance with Articles 1 and 2 of the
Protocol (No 21) on the position of the United Kingdom in respect
of the Area of Freedom, Security and Justice, annexed to the Treaty
on European Union and to the Treaty on the Functioning of
the European Union, the UK is not taking part in the adoption
of the decisions relating to the Article, and will not be
bound by them nor subject to their application, except as a separate
Contracting Party."
22.19 With regard to the Accession Protocol,
the Minister says:
2. "The proposed Council Decisions make
provision for those States that became Member States of the European
Union after the signature of this Agreement (Bulgaria, the Czech
Republic, Cyprus, Estonia, Latvia, Lithuania, Hungary, Malta,
Poland, Romania, Slovenia and Slovakia) to accede to the Agreement."
22.20 He also notes that there is no legal base for
the Council Decision seeking Member State agreement to the Protocol,
as the EU is not entering into any substantive obligations as
a result of this decision.
Conclusion
22.21 We welcome the decision to split the Council
Decision to conclude the Agreement into two: one concerning JHA
measures — a readmission provision — to which the
UK's opt-in applies; the other concerning non-JHA measures. The
approach follows that taken to the EU-Indonesia Partnership and
Cooperation Agreement and the Framework Agreement on Comprehensive
Partnership and Cooperation between the EU and the Republic of
Korea , and provides for greater legal certainty about the UK's
participation in JHA measures — something for which this
Committee has called since early in this Parliament. We trust
this approach now becomes standard practice for future EU international
agreements that include Title V provisions.
22.22 We are grateful to the Minister for the
explanation of the reasons for which the UK does not propose to
opt into the readmission provision as part of an EU commitment.
We support the Government's approach.
22.23 We have no further questions to ask and
clear all the documents from scrutiny.
72 See headnote: (34168) 13155/12 and (34169)13156/1/12
REV.1: HC 86-xxxv (2012-13), chapter 19 (13 March 2013). Back
73
See headnote: (34168) 13155/12 and (34169)13156/1/12 REV.1 Back
74
A reference to his Explanatory Memorandum. Back
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